Diversity Must Be Coterminous With Merit, Delay In Appointing Judges Could Affect Democracy: Justice BV Nagarathna
While speaking at an event on the roadmap for empowering the judiciary, Supreme Court Judge Justice B.V. Nagarathna remarked that the government's inaction or delay in the appointment of judges could have severe effects on democracy in general and the judiciary in particular. The Judge also said that diversity on the bench must be coterminous with the merit of the judges who are appointed.
She said, "In fact, in my humble view there is a constitutional obligation upon the executive to effectively process appointments and transfer of judges recommended by the collegium of the Supreme Court within the earliest possible time so that there are no vacancies in the courts which could hamper effective judicial functioning."
Justice B.V. Nagarathna spoke at the '5th Conference of Central Government Counsel Of Southern States' in Bangalore and delivered the inaugural address on the subject of 'Roadmap for empowering the Judiciary'.
In attendance at the event were the Law Minister Kiren Rijiju, Justice M.M. Sundresh, Justice Aravind Kumar, Solicitor General Tushar Mehta and many Judges of the High Courts of Southern States.
Speaking at the event, Justice M.M. Sundresh said that according to him, there should be vertical reservation for women and also that the colonial mindset favouring the English language should change. (read report)
Stating that the topic was a provoking one, Justice B.V. Nagarathna commenced by saying, "Usually we think the judiciary is a very strong organ under the constitution, the empowerment is not of the judiciary but empowerment of the citizens as the result of the decisions rendered by the judiciary. But this intriguing topic is quite interesting and it gave me food for thought over last week... As I already said, the Indian judiciary is already empowered in the sense it is a vital organ, one of the three organs under the Constitution. I must say that the Indian judiciary is one of the most powerful organs in the world, particularly the Indian Supreme Court. Not merely because of the powers it has but the reach it has to the countrymen in India."
She further said the Indian judiciary is "sthitapragnya", "It is neither affected by praise nor by hardship and therefore the empowerment is in the personality of the men and women who man the judiciary."
Impartial & Independent Judiciary Was Gradually Built:
Remembering the first Attorney General M.C. Setalvad, the judge said, "I am speaking to the audience of the Counsel of the central government. M.C. Setalvad in his famous lecture said that an impartial and independent judiciary was gradually built up in the British times. The Constitution of India continued and strengthened this tradition by incorporating into itself what may be called an integrated judicial system designed to function impartially beyond the range of executive influence".
"A judicial system of this nature was essential in order to preserve and maintain the ideals of democracy and freedom and rule of law embodied in the constitution. Now to this enlightened audience, I need not say we have the pyramidal structure of judiciary. This is conscious framing done by the framers of the constitution with the single integrated judiciary in India with the Apex Court at the top. This is in order to have uniformity in laws and for maintaining uniform standards of judicial behaviours. The reason is that it is one of the unifying sources in the country to the unity and integrity of India", she said.
Article 226 Is More Powerful Than Article 32:
Speaking about Article 226 of the Constitution, the Judge said, "The empowerment comes from that Article itself and we all know the High Court cannot and is not restricted to issuance of only writs and declarations but to pass orders for any other purpose. We all know that this Article is more powerful than Article 32 of the constitution which gives the right or the authority to the Supreme Court to pass orders only with regard to five writs as such."
Independence Of Judiciary:
Commenting on the independence of the Judiciary, Justice Nagarathna said that "empowerment of the Indian judiciary arises from the Indian constitution itself. But I must qualify the statement by saying that it is not automatic. One of the key aspects on which the ability of the judiciary to perform its role is heavily contingent upon the most salient aspect which according to me is the independence of the judiciary."
"Where independence exists, Courts are able to be more forceful mechanisms for the defence of constitutionalism and justice. The role of an independent judiciary in galvanizing our constitutional machinery is characterized by institutional checks and balances. This is in recognizing that while due deference must be shown to the powers, responsibilities and endeavours of the two other organs of the government, any state action making inroads into the personal liberties or basic human rights of an individual must invariably be subject to judicial scrutiny", she added.
Justice Nagarathna said that the founding fathers empowered the judiciary by saying that the salary and tenure of the judges cannot be adversely affected and apart from giving the source of judicial authority, it is also noted in the principle of separation of powers, which is nothing but independence from the political departments.
Fearless Judges, Delay In Appointments:
Justice Nagarathna, while talking appointment of Judges, said "The adequate manning of the judiciary at all levels by independent and fearless judges is necessary to ward off any semblance of interference from any quarter. I must say in my most humble way that the governmental and executive's inaction or delay in critical matters concerning the judiciary such as the appointment of judges could have severe effects for democracy in general and the judiciary in particular."
"In fact, in my humble view, there is a constitutional obligation upon the executive to effectively process appointments and transfer of judges recommended by the Collegium of the Supreme Court within the earliest possible time so that there are no vacancies in the courts which could hamper effective judicial functioning. If empowerment of the Indian judiciary is to be seriously considered then I would feel that the vacancies must be filled up and transfers must be affected at their earliest possible time", Justice Nagarathna said.
Let Judiciary Be Left Alone:
The Judge emphasized that "institutional balance and autonomy of the judiciary need to be preserved under the constitution and therefore the obligation of the executive branch of the government towards maintaining a vital balance is necessary. This is to ensure that the judiciary is empowered. This lies in recognizing that the judiciary is performing its constitutionally endured roles."
"Thus one of the ways of empowering the judiciary is having a maximum number of judges at all levels in the courts as well as in the tribunals so that the rule of law is ultimately maintained by judges who have the pulse of society in their heart and rule of law in their mind", she said.
She said that having regard to the doctrine of separation of powers under the constitution, not just affirmative action from the other organs under the Constitution is required but at the same time the judiciary must be insulated. "Insulation does not mean that judges be in ivory towers. Let the judiciary be left alone to come out with its own evolution and empowerment", she said.
Diversity On The Bench, Absence Of Meritious Judges:
Talking about the next aspect of empowering the judiciary, Justice B. V. Nagarathna said "talking of diversity I must say and caution that diversity should not be a token symbol and just to give a feeling of representation or inclusivity. Representation should not merely be optics, but representation must be for the purpose of having a harmony with merit. Therefore, diversity on the bench must be coterminous with merit of who are appointed."
"The absence of meritorious judges would inevitably result in the judiciary becoming vulnerable and the critical balance under the Constitution not being maintained. Therefore for the purpose of dispensation of good and quality justice, when we speak of diversity, we must also keep merit in mind", she added.
Empowerment, Both External And Internal:
The Judge said, "externally I have spoken just now with regard to the provisions of the Constitution for maintaining the independence of the judiciary. But according to me the most important aspect of empowerment of the judiciary is internal empowerment which must come from the personality of the judges who are appointed to the various courts."
"The personality of the judges, their moral strength and calibre are of the most importance. A judge should not be biased either on account of gender, religion caste, sexual orientation, marital status, socioeconomic status or political affiliation. A judge should not show any kind of conduct which manifest prejudices. Integrity and impartiality of judges are the prerequisites for an empowered judiciary and protection of the law", she said.
"Howsoever much the executive may assist the judiciary in giving infrastructure, giving the manpower to judges, providing prosecutors, providing court buildings, providing government counsel and everything else under the Constitution which is required and over and above. If we don’t have independence and impartial judges with integrity I am afraid the judiciary is not empowered at all. Therefore my plea is that ultimately the personality of the judge is of utmost importance when it comes to the empowerment of the judiciary", Justice Nagarathna said.
The judge concluded by suggesting that the government must have a National Litigation Policy as the government is the biggest litigant. She said, "What should be litigation policy at the central stage and various states must be determined so that litigation of the government in the courts can be reduced".
Justice B.V. Nagarathna is poised to become India's first woman Chief Justice in the year 2027.
